[Dandridge vs. Washington's Executors.]

to the parties in the particular bequest under consideration. Her intention in that respect was effected by the gifts of one hundred pounds to each, to set him up in his trade. This bequest seems to have been made not with a view of adding to their private fortunes, but with a view to their education and preparation for that particular business which they were afterwards to pursue. They are not therefore entitled to the whole fund, whatever may be its *377] amount, but to so much of it as is required for the object it is

to accomplish.

In ascertaining the amount which is so applicable, the plaintiffs contend that one of the learned professions may be taken as the standard, with as much propriety as the trade or art of a mechanic. The Court does not think so. The distinction between a profession and a trade is well understood; and they are seldom, if ever, confounded with each other in ordinary language. If the testatrix had contemplated what in the common intercourse of society is denominated a profession, she would scarcely have used a term which is generally received as denoting one of the mechanical arts.

But we do not think the bequest is confined to the expense of acquiring the trade, so as to be enabled to exercise it in the common way. Such does not appear to have been the intent of the testatrix. Her bounty is extended to the proper education of three relatives, so that they may be severally fitted and accomplished in some useful trade. Their education is a primary object, as well as their acquisition of the trade; and when we consider the situation and character of the parties, and the language of the will, we cannot doubt that the testatrix intended such an education as would fit her relatives to hold a distinguished place in that line of life in which she designed them to move. The sum allowed for the object ought to be liberal, such as would accomplish it, if the fund from which it was to be drawn would admit of it.

In a suit for the distribution of this fund, we do not think the residuary legatees necessary parties. They have undoubtedly an interest in reducing the sum to be allowed out of it to the complainant, but they have the same interest in reducing every demand on the estate. Whatever remains sinks into the residuum, and that residuum is diminished as well by the claims of creditors and specific legatees as by this. In all such cases the executors represent the residuary legatees, and guard their interests. It is a part of that duty which requires them to protect the interests of the estate. In *378] *such suits the residuary legatees are never made parties. To require it would be an intolerable burden on those who have claims on an estate in the hands of executors.

We do not think that the bill ought to have been dismissed for want of proper parties, unless the complainant refused to make such as were really necessary; and then it might have been dismissed without prejudice.

The Circuit Court can make no decree for the distribution of the residuum, unless all those entitled to distribution are brought before

[Dandridge vs. Washington's Executors.]

the Court; but it may grant all other relief to which the complainant may be entitled, on making Bartholomew and Samuel Henley parties.

This Court is of opinion that the decree of the Circuit Court, dismissing the complainant's bill, ought to be reversed, and the cause remanded to the said Circuit Court, with leave to the plaintiff to make new parties; after which the cause ought to be referred to the master, with instructions to compute the several sums which ought to be allowed out of the fund applicable to the education of Bartholomew Henley, Samuel Henley, and John Dandridge, in conformity with the will of Mrs. Martha Washington, deceased; on which sums interest ought to be allowed; and also to compute the sum to which the plaintiff may be entitled, as one of the residuary legatees of the said Martha Washington, deceased; provided the other residuary legatees be brought before the Court as parties; on failure to do which, the plaintiff's bill is to be dismissed, so far as it claims a part of the residuary estate, without prejudice.

*

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Columbia, holden in and for the county of Alexandria, and was argued by counsel. On consideration whereof, this Court is of opinion, that the Circuit Court erred in dismissing the plaintiff's bill for want of proper parties, and that the said decree ought to be reversed. Whereupon it is ordered and decreed by this Court, that the decree of the said Circuit Court in this cause be, and the same is [*379 hereby, reversed; and this Court doth further order that the said cause be, and the same is hereby, remanded to the said Circuit Court, with directions to give leave to the plaintiff to make new parties, that the proper accounts may be taken in order to a final decree; in which decree the plaintiff ought to be allowed interest on the sum due to him for his education out of the money applicable to that object.

287

*JOHN F. SATTERLEE, PLAINTIFF IN ERROR, US. ELIZABETH MATTHEWSON, DEFENDANT IN ERROR.

S. and M. held land in Luzerne county, Pennsylvania, in common, under a Connecticut title. A division of the land was made between them, and S. became the tenant of M. of his part of the land thus set off in severalty, under a lease, to be terminated on a notice of one year. S. afterwards obtained a Pennsylvania title to the land leased to him by M. and on a trial in an ejectment for the land, brought by M. against S., the Court of Common Pleas of Bradford county, Pennsylvania, held that S. having held the land as tenant of M., could not set up a title against his landlord. Upon a writ of error to the Supreme Court of Pennsylvania in 1825, it was held that "the relation between landlord and tenant could not exist between persons holding under a Connecticut title." The Legislature of Pennsylvania, on the 8th of April, 1826, passed an act declaring that "the relation of landlord and tenant should exist and be held as fully and effectually between Connecticut settlers and Pennsylvania claimants, as between citizens of the Commonwealth." The case came again before the Supreme Court of Pennsylvania, and the judgment of the Court of Common Pleas of Bradford county in favour of M. the landlord, was affirmed; that Court having decided that the act of assembly of the 8th of April, 1826, was a constitutional act, and did not impair the validity of any contract. S. brought a writ of error to this Court, claiming that the act of the assembly of Pennsylvania, of the 8th of April, 1826, was unconstitutional. Held, that the act was constitutional.

Objections to the jurisdiction of this Court have been frequently made, on the ground that there was nothing apparent on the record to raise the question whether the Court from which the case had been brought, had decided upon the constitutionality of a law, so that the case was within the provisions of the twenty-fifth section of the judiciary act of 1789. This has given occasion for a critical examination of the section, which has resulted in the adoption of certain principles of construction applicable to it. One of those principles is, that if the repugnancy of a statute of a state to the Constitution of the United States, was drawn into question, or if that question was applicable to the case, this Court has jurisdiction of the cause; although the record should not in terms state a misconstruction of the Constitution of the United States; or that the repugnancy of the statute of the state to any part of that Constitution, was drawn into question. [409]

There is nothing in the Constitution of the United States which forbids the legislature of a state to exercise judicial functions. [413]

There is no part of the Constitution of the United States which applies to a state law which divested rights vested by law in an individual, provided its effect be not to impair the obligation of a contract. [413]

In the case of Fletcher vs. Peck, 6 Cranch, 87, it was stated by the Chief Justice, that it might well be doubted whether the nature of society and of government do not prescribe some limits to the legislative power; and he asks, "if any be prescribed, where are they to

*381]

be found, if the property of an individual *fairly and honestly acquired, may be seized without compensation?" It is nowhere intimated in that opinion, that a state statute which divests a vested right, is repugnant to the Constitution of the United States. [413]

THIS case came before the Court on a writ of error to the Supreme Court of the state of Pennsylvania.

In 1784 or 1785, Elisha Satterlee, the father of the plaintiff in error, and Elisha Matthewson, the husband of the defendant in error, the defendant in error being the sister of Elisha Satterlee, went to a large body of land in Luzerne county, Pennsylvania, part of which was the land in controversy, and both took possession of the same, under, as is believed, a supposed title from the Susquehanna Company. They worked on the lands in partnership,

[Satterlee us. Matthewson.]

the same lying on both sides of the Susquehanna river, until 1790, when it was agreed that Matthewson, who had a house on the west side of the river, should occupy the land before held in common, on that side, and become the tenant of Satterlee for his portion of the land on the said west side of the river; and Elisha Satterlee moved on the lands on the east side, on precisely the same terms: that is, that he should become the tenant of Matthewson for his portion of the land on the said east side of the river. By this arrangement each became possessed, in severalty, of the particular portion of the lands thus allotted to him, and the tenant to the other of portions of the land before held in common; and it was expressly agreed that either of the parties might put an end to the tenancy at the end of any one year; and in that case each was to be put into possession of his own lands.

In 1805, Elisha Matthewson died, having bequeathed by his will to his widow during life, and to his children after her death, the interest he had in the said land. Elisha Satterlee repeatedly, after Matthewson's death, acknowledged the original bargain, and that he was a tenant of Matthewson's part; but he wished to buy it; he wished to give other lands for it, &c. &c.; but his sister could only sell for life, and her children were minors. In 1810, she built a house on part of the tract, and put a tenant in it; but her brother would not give her possession of the part he had in cultivation. In 1811, she made application to the land office of *Pennsyl[**382 vania, and on the 7th of January, 1812, took out a warrant in her name in trust for her children, and had the land surveyed, and obtained a patent for it from the commonwealth of Pennsylvania. She stated in her application an improvement made by her husband in 1785; and paid interest to the state on the purchase moneys from the date of the improvement. After his sister's warrant, survey, and return, Elisha Satterlee purchased a Pennsylvania title commencing in 1769, and consummated by a patent from the commonwealth in 1781, which he alleged covered the land in question; but he directed the deed to be made to his son, J. F. Satterlee, the plaintiff in error; and in 1813 an ejectment was instituted in the name of the son against the father, in pursuance of a plan of the father's to release him from the situation of tenant to his sister. By a law of Pennsylvania then in existence, but since repealed, a rule of reference might be entered the same day the writ was taken out, and by diligence a plaintiff might obtain a report of arbitrators, which had the effect of a judgment, before the return day of the writ.

This proceeding was, by means of the father's waiving all objections as to time and notice, so carried on, as that the son not only had judgment, but a writ of possession before the return of the writ.

J. F. Satterlee then gave to his father a lease for life of the land for the consideration of one dollar. Elizabeth Matthewson instituted an ejectment. J. F. Satterlee, in 1817, procured himself to be VOL. II.-2 B

37

289

[Satterlee vs. Matthewson.]

entered codefendant in the suit, and his father being dead, is now sole defendant.

On the trial of the cause the defendant made title under an application of John Stoner of 3d of April, 1769. Stoner conveyed to Mr. Slough, who in 1780 conveyed to Joseph Wharton. A patent issued to Wharton in 1781, and he in April, 1812, conveyed to the defendant. The judge of the Court of Common Pleas of Bradford county instructed the jury, that if they found the ejectment brought by the son of J. F. Satterlee, in whose name the conveyance was taken, was actually instituted by the father, though in his son's name as agent for himself, and that the suit was all a trick, and so *conducted on purpose to prevent his sister from interfering

*383] or being heard, that he was still her tenant, as much as if no such proceeding had taken place. But if the son was the real purchaser, and the suit was instituted and conducted bona fide, and the lease to the father during life for a dollar a year was bona fide, that then E. Satterlee having been evicted by due course of law, might take a lease from him who recovered; and in that case, the relation of landlord and tenant between him and his sister was at an end, and the cause must be decided upon the respective titles of the parties. But if they found him still a tenant, he could not set up against his landlord an adverse title, purchased during his life. But he must restore his possession to his landlord, and might then institute a suit on the title he had purchased; and if it was the best, recover from his former landlord. The verdict and judgment were for Mrs. Matthewson.

The case was removed by writ of error to the Supreme Court of Pennsylvania. On the argument of this cause before the Supreme Court, it was decided, "That the relation between landlord and tenant could not exist between persons holding under a Connecticut title." And that Court, in 1825, reversed the judgment of the Common Pleas and awarded a venire facias in novo.

Immediately after this decision, on the 8th of April, 1826, the legislature of Pennsylvania passed an act, by which it was enacted, "That the relation of landlord and tenant should exist, and be held as fully and effectually between Connecticut settlers and Pennsylvania claimants, as between other citizens of the commonwealth." The ejectment depending in the Court of Common Pleas, of Bradford county, between the plaintiff in error and the defendant, again came on for trial after the law of April 8, 1826, on the 10th May, 1826; and the judge gave in charge to the jury as follows, after stating the above recited act of assembly, to wit; "It is a general principle of law, founded on wise policy, that the tenant shall not controvert the title of his landlord, and prevent the recovery of his possession, by showing that the title of the landlord is defective.

Among the exceptions to this general rule, the Supreme *384] Court of Pennsylvania have decided, that when the landlord claimed (as the plaintiff claimed on the former trial of this cause) inder a Connecticut title, the case should form one of the excepted